Tuesday, December 08, 2015

Cato Institute debate on "constitutional crises"

Sandy Levinson

The Cato Institute web site today published a piece of mine on "constitutional crises" within the American system, which will be followed in the next week or so by responses from Jacob Levy, Tom Ginsburg, and Richard Albert.  I am obviously grateful to the folks at Cato for giving me this opportunity, and I look forward to reading the response (and then replying to them). 


I reserved your new book -- looks interesting & will check it out when my library gets it in. The cleaning company spam is topical, I guess, given recent events.

"Consider the impeachments of Richard Nixon and Bill Clinton."

You do realize, don't you, that of the two, only Clinton got impeached? Nixon was merely warned that he would be if he didn't resign.

Brett's "merely warned" fails to convey the nature of Nixon's doings, which have been well documented even in his own voice/words. And Clinton, while impeached, remained in office as there was a failure of conviction. Put in perspective and compare the alleged misdoings of each of them. Even Republicans could no longer support Nixon based upon the evidence. But his successor gave Nixon a full pardon from any illegalities. Shall we turn this thread into a referendum on Nixon and Clinton?

I am fully aware of Nixons doings. Which does not in any way change that Nixon wasn't impeached. What's your point here, shag? That if somebody is bad, it's ok to get history wrong?

Yes, Nixon was a nasty piece of work, and Ford did something horribly wrong with that pardon. And Nixon threatened to have his enemies audited, and got audited himself for his trouble, while Clinton's enemies spent his whole administration being perpetually audited, so how does that make Nixon worse than Clinton?

The chief difference is that Republicans weren't willing to protect Nixon, while Democrats were willing to protect Clinton. Aside from that, Clinton did stuff that Nixon is considered evil for just talking about doing.

It's clear that Brett doesn't understand perspective. Now with his:

"Aside from that, Clinton did stuff that Nixon is considered evil for just talking about doing."

Brett tries to be cute. Perhaps he can elucidate on what Nixon was "just talking about doing." I don't know how old Brett was back in the good old days of Watergate but I lived through it as an adult. Look at the evil that Nixon actually acted on that he talked about. Look at his co-conspirators in his administration and the stream of guilty findings. Brett seems to be suggesting that back then Republicans should have been supporting Nixon to the hilt. But unlike the Republicans today, Republicans were not then that stupid. The writing was on the wall. Nixon had to go to preserve not only America but the Republican Party.

And Brett in his typical ignorant fashion tries to employ innuendo with his original irrelevant correction of Sandy's statement he quoted from the article. But consider the point Sandy was making as to what constitutes a political crisis. If the Republicans had not acted back then with Nixon to resign and impeachment followed, imagine the forum in the House impeachment and a subsequent trial in the Senate, with all the sordid details that constituted Nixon and Watergate revealed. That might indeed have been a constitutional crisis. But politics, with the benefit of a genuine Fourth Estate, worked. And Republicans back teh deserve credit for the actions they took. There was an awareness of both parties that Nixon had gotten out of hand. There was honest debate and discussion by elected officials and other politicians. A further crisis was averted.

So my point, Brett, is your feeble attempt to detract from Sandy's article. But I'm not sure you read it in its entirety. But then again, you are fulfilling your role as a troll.

Now let's get serious and talk about high crimes misdemeanors. Lying about what is or isn't s_x, something a few House Speakers in Clinton's days knew of first hand? Perhaps a divorced man could be expected to sympathize.

"Brett seems to be suggesting that back then Republicans should have been supporting Nixon to the hilt."

And, how exactly do you get that out of my saying that Ford did something horribly wrong in pardoning Nixon? I wanted to see Nixon do time, frankly. Set a horrible precendent to pardon him, which we've been paying for in corrupt administrations ever since.

Look, Nixon didn't get impeached, Clinton did. I'm pointing out to Sandy that he got a rather basic question of history wrong. Again, you think getting history right isn't important, so long as it's history about somebody bad?

That's a pretty dangerous attitude. you should always try to get your facts right.

Nixon was not merely "warned" -- impeachment hearings took place, articles drawn up and passed by the House Judiciary Committee. I take this is what he meant by the "impeachments" -- a loose use of the broad process. Since he was in his thirties (b. 1941) at the time, I think Prof. Levinson knows Nixon was not impeached formally, so I'm inclined to give him the benefit of the doubt.

[I noted in a past thread that one constitutional expert determined around fifty judges resigned on threat of impeachment. Few probably had such drawn out impeachment hearings or actual articles of impeachment passed. "Warn" without more seems more appropriate in that context.]

The "chief difference" was that Nixon did things much more worthy of impeachment and Democrats writ large "protected" Clinton only in that sense. Many criticized his actions and some wanted to formally rebuke him ala the Whigs and Andrew Jackson. As to the pardon, I have mixed feelings about it.

It's also clear that Brett doesn't understand context regarding Sandy's article in its entirety. Brett can nitpick all he wants. Sandy is guilty at most of shorthand, not of trying to rewrite history. But did Brett find anything else about Sandy's article to comment on, assuming he read and understood it? Or did Brett stop reading after the first sentence with his feeble "GOTCHA" attempt?

This comment has been removed by the author.

I flagged the point since the essay allows comments and a moderator replied:

"It's true that Nixon never went to trial, but there were articles of impeachment brought against him and reported favorably out of committee. I thought it was fair to let it stand."


Joe, thanks for pointing this out.

The first response essay has been posted, by Jacob T. Levy, "A Crisis, but Not Just and American One." I eagerly await the further scheduled responses, and then Sandy's responses thereto. I have enjoyed Sandy's essay and Levy's response. While the Cato website permits comments, I hope Sany will provide a separate post at this Blog with his responses with comment privileges. The subject matter is most serious, especially with the current 2016 presidential campaigns underway. I shall reserve comments untill all is on the table. Over the years I have expressed my admiration of Sandy's writings, even the few times I may disagree. I continue to be impressed with the depth of his concerns with political dysfunction. And if the follow up discourse after Levy adds to the discussion, perhaps we shall all have a better understanding of a major issue that confronts the world and not just America. And thanks to Cato, as its website uses a font conducive to a one-eyed geezer (Note to Cato: who will remain a progressive).

The chief difference is that Republicans weren't willing to protect Nixon, while Democrats were willing to protect Clinton. Aside from that, Clinton did stuff that Nixon is considered evil for just talking about doing.

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The second response essay by Richard Albert "America's Unamendable Constitution" has been posted. One more to go before Sandy responds.

All former presidents were more or less good,let's not exagerate.
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